Tunueli Bosco Sangana vs Republic (Criminal Appeal No. 792 of 2023) [2025] TZCA 1118 (15 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A., MASOUD, J.A. And ISMAIL, J J U CRIMINAL APPEAL NO. 792 OF 2023 TUNUELI BOSCO SANGANA ................. ...................................... APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Madeha, J.) dated 28thday of August, 2023 in DC. Criminal Appeal No. 30 of 2023 JUDGMENT OF THE COURT 10th & 15th October, 2025 ISMAIL J.A.: Tunueli Bosco Sangana, the appellant, fell foul of the law and arraigned in the District Court of Mbinga at Mbinga, facing a charge of rape. He was alleged to have carnally known a girl of 10 years of age, the daughter of PWI. To preserve her dignity, we shall simply refer her as the victim or PW3. The incident was alleged to have occurred on 23r d October, 2022, at Tulila Mpepai village within Mbinga District in Ruvuma Region. The village is a home to both the appellant and the victim, and the duo are said to be neighbours who hail from the same locality.

The appellant who pleaded not guilty was, ultimately, convicted of the charged offence and handed a 30-year jail sentence. Besides, he was ordered to pay compensation to the victim, to the tune of TZS. 500,000.00. The trial court's decision irked the appellant, hence his decision to institute an appeal to the High Court of Tanzania at Songea. His attempt fell to naught as the appeal was found to be barren of fruits. He is now before us protesting his innocence. The record of appeal informs that, at around 16:00 hours of the fateful day, PWI, a mother of five, left home for Magengeni area where she went about her business. She left behind her husband and her other children, including PW3, the victim. She came home at 22:30 hours and found the victim awake. After sometime, the victim went to bed. When she woke up the following morning, the victim went to school but when she came back home, she went to sleep. On the third day, the victim woke up and, as she left for school, she complained that she carried an abdominal pain. PWI advised her to take some medicine but the victim declined, stating that she knew what brought her the ailment. She attributed the pain to the appellant because he had carnally known her. Enraged by what she heard, PWI escalated the matter to a ten-cell leader who in turn reported the matter to the hamlet executive officer. PW3,

who could barely walk, was subjected to inspection and what PWI found horrified her, She found bruises on the victim's vagina. Meanwhile, a swoop succeeded in the apprehension of the appellant who was conveyed to the local authority office. PWI was directed to go to a police station from which she was issued with a police form known as PF3 that allowed the victim to undergo a medical examination and treatment. At the hospital, PW3 was attended by Samwel Gwedu, a clinical officer who testified as PW2. She observed that PW3's labia majora and minora were swollen and her hymen was perforated. He concluded that a blunt object had been inserted into PW3fs genitalia. A PF3 containing these findings was admitted in court as exhibit PI. When she took a witness box, PW3 testified that she knew the appellant as their neighbour who, on the fateful day, found her in the company of Neema and Eliza. He called her and promised her money if she agreed to have a sexual intercourse with him. She agreed and called at his house and had a sexual intercourse. PW3 testified that after the act, she experienced horrible pains in the vagina, abdomen and thighs. She admitted that she kept everything to herself, fearing that her mother would punish her. She reported the incident after three days.

In his defence, the appellant fervently denied any wrong doing. In his written statement of defence which he filed in lieu of oral testimony, owing to his communication hiccups, the appellant contended that he is a victim of fabrication to settle scores because of the feud that existed over a refund of bride price that he paid with a view to marrying PW3's sister called Eliza. He alleged that Eliza got married to another man. He contended that the matter was brought to the village government's attention and a decision was made that the victim’s father should effect a refund to the appellant. In yet another defence, the appellant raised the defence of alibi, alleging that he was not at the scene of crime on the fateful day. He, however, provided no evidence to back up his defence. The learned trial magistrate would hear none of it. He found the prosecution's case credible and, consequently, found the appellant guilty and convicted him. He was also sentenced to a lengthy sentence as stated above. His efforts to protest his innocence took him to the High Court but his quest was nipped in the bud when his appeal was dismissed. Not to be daunted by the successive losses, the appellant instituted the instant appeal. His appeal was predicated on four grounds but, as it shall unfold soon, the contest by the counsel narrowed down to only one ground of appeal which raised the

question as to whether the case for the prosecution was proved beyond reasonable doubt. At the hearing of the appeal, the appellant enlisted the services of Mr. Edson Mbogoro, learned counsel, while his counterparts Ms. Mwajabu Tengeneza, learned Principal State Attorney, Mr. Frank Chonja and Ms. Agnes Simba, both learned State Attorneys, represented the respondent. As intimated earlier on, Mr. Mbogoro informed us that, having reviewed the grounds of appeal which were filed by the appellant himself, he had resolved to abandon all other grounds and pitch his tent on ground one. His contention in respect of this ground is that the case against the appellant was not proved by the prosecution. This, he said, is a result of the doubts that marred the testimony adduced during trial. In so doing, he punched a few holes in the prosecution's case. Mr. Mbogoro argued that, at page 10 of the record of appeal, PWI testified that they were neighbours with the appellant. This was in sharp contrast with what PW3 testified that they live in the same locality. He argued that living in the same locality would not necessarily mean that they are neighbours. He cast some doubts on the contention that the appellant met PW3 and promised her money after which she went to the appellant's house on her own. This, he contended, implies that there must have been some

dialogue between the two which is highly doubtful given the appellant's age. The learned counsel added that the testimony is quiet on how they communicated. The other area of Mr. Mbogoro's disquiet related to what happened in the room. He referred us to page 14 of the record of appeal and submitted that, whereas PW3 stated that the appellant undressed her, nothing is said about what happened after she was undressed. He said that PW3 would even use the language that is normally metaphoric as used by child victims to refer to the sexual indulgence between them and their tormentors. The learned counsel was also of the contention that, the pains alleged to have been inflicted were not explained by PW3 herself. He felt that it was necessary to explain how she was carnally known as she alleged. Regarding the naming of the suspect at the earliest opportunity, the consternation by Mr. Mbogoro was based on what PWI testified at page 10. He wondered why it took three days to report an incident that occurred on 23rdOctober, 2022. He took a swipe at the testimony of PW3 who, at page 14, was quoted as saying that she feared that she would incur her mother's wrath if she disclosed the incident. He found this to a little gibberish. Mr. Mbogoro further contended that, after the incident, PWI and PW4 went to four different places and that in none of such places did they name the

appellant as the suspected rapist, not even on 26th October, 2022, the date on which the victim visited the hospital for examination. He decried the absence of an investigator who, in his contention, would shed light on when exactly the name of the appellant came into frame. Instead, Mr. Mbogoro contended, the appellant was named by PW3 on 19thJanuary, 2023, after a whopping 88 days! He argued that, circumstances surrounding this matter create doubts which should benefit the appellant. The learned counsel dwelt onto what he contended to be instances of misapprehension of evidence as evidenced in the concurrent decisions of the lower courts. He enumerated a few instances in respect of which the findings of the courts were at variance with what the witnesses testified during the trial. The learned counsel urged us, in the end, to hold that the case against the appellant was not proved and that the appeal before us be allowed. Ms. Tengeneza did not shirk. She was valiantly of the contention that the appeal is devoid any merits and liable to dismissal. She argued that ingredients of rape as stated in the charging provision were sufficiently proved. Regarding the victim's age, the learned counsel invited us to revisit page 9 of the record of appeal at which age of the victim was stated to be 10 years. With respect to penetration, Ms. Tengeneza relied on the testimony

for PW3 to tell her mother. Mr. Tengeneza acknowledged that there were contradictions on where PWI went when she left home on the fateful day. She urged us to consider the contradictions as minor and inconsequential in line with what we held in Athuman Rashid v. Republic, Criminal Appeal No. 264 of 2016 (unreported). On the delay in naming the suspect, the contention by Ms. Tengeneza is that circumstances of the case did not lower credibility of the witness and the prosecution case. Submitting on the alleged misapprehension of evidence, the learned counsel found none, adding that what the counsel for the appellant considered to be a misapprehension was just a style of composing the judgment. She maintained that, both judgments conformed to the requirement of the law and that, nothing caused any prejudice to the appellant. With regard to failure to parade the investigator as one of the witnesses, Ms. Tengeneza agreed that the investigator was a key witness. She quickly added, however, that his presence would not bring anything new as he would only narrate what he found out during his investigation. In any case, she argued, section 152 of the Evidence Act, Cap. 6 does not state the number of witnesses to be called to testify.

Regarding the delay in arraigning the appellant, the learned counsel poured cold water on his counterpart's contention. Terming the delay not too inordinate, she argued that the appellant suffered no prejudice as a result. In his rejoinder, Mr. Mbogolo addressed us on the delay in arraigning the appellant. He argued that such delay spoke volumes about credibility of the case because the record is clear that investigation of the matter was complete so early into the proceedings. He argued that presence of the investigator would aid in answering the unexplained delay in naming the appellant and in arraigning him in court. As it is, he contended, several missing links were apparent. He considered this to be a denial of the right to a fair trial. The learned counsel was adamant that the question of distance between PW3's residence and that of the appellant was still pertinent and unresolved. He also raised a concern on the possibility of the appellant calling PW3 in the presence of Eliza and Marry both of whom are considered to be older than PW3. This, he argued, defied logic. The learned counsel's splendid but rival submissions bring out one singular question for our determination. This is as to whether the case against the appellant was sufficiently proved.

As we move to pronounce ourselves on this pertinent question, we wish to restate the settled position in criminal trials. This is to the effect that the burden of proving the accused person's culpability rests on the shoulders of the prosecution and the standard of proof is beyond reasonable doubt. A plethora of decisions by this Court point to this enduring canon of evidence. See for instance: Joseph Makune v. Republic [1986] T.L.R. 44; Christian Kale and Rwekaza Bernard v. Republic (1992) TL.R. 302; and Director of Public Prosecutions v. Focus Malindi, Criminal Appeal No. 542 of 2022 [2025] TZCA 305. What this means is that the prosecution is enjoined to ensure that the evidence that it lays before a trial court sufficiently establishes all ingredients constituting the offence charged, and that the finding of guilt by the trial court is not premised on the weakness of defence testimony adduced by the accused person. In other words, it is the strength of the prosecution case that should hold the sway in concluding that the accused person is guilty. In the instant case, the testimony that put the appellant to a blemished role was mainly composed of that of PW3, the victim. This testimony was corroborated by that of PWI, PW2 and exhibit PI. The question we are called upon to determine is whether this testimony was qualitatively sufficient to discharge the prosecution's burden of proof. In law, the testimony is said to

consequence if she divulged any of what they did on the fateful day. We have not been told, either, that PW3 would be in a state of 'woe betide' if PWI got a wind of what befell her. We consider the delay in naming the appellant as the suspected rapist unexplained and justifies raising a few eyebrows. It justifies invocation of the principle that we enunciated in Marwa Wangiti Mwita and Another v. The Republic, Criminal Appeal 6 of 1995 [2000] TZCA, wherein it was held: "The ability o f a witness to name a suspect at the earliest opportunity is an all-important assurance o fhis reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry.,, We find that PW3's lethargic conduct eroded the assurance of reliability of her testimony. It is for these reasons that we refuse to endorse PW3 as a credible witness whose testimony can be relied upon and found a conviction against the appellant. It is just a pale shadow of what a credible, plausible, cogent and convincing the evidence is. We are persuaded that the room has been left ajar for entertaining serious doubts. Next for our determination is the question of absence of the investigator and two other persons who were present when the appellant allegedly enticed PW3 with money. Whereas Mr. Mbogoro has profiled them as key witnesses whose absence invited the drawing of adverse inference, 13

Ms. Tengeneza is not convinced that these were witnesses who would bring anything of significance to the prosecution case. With respect to Ms. Tengeneza, this contention couldn’t be further from the reality of the matter. We will begin with Neema and Eliza. These had been mentioned by PW3 as people in whose presence the appellant wooed PW3 into the trap that saw her go through a horrible experience. Eliza has also been mentioned as a source of the feud that allegedly existed between the appellant and PW3's family, when she chose to get married to another man and dump the appellant. Institution of the measures to recover the pride price allegedly landed the appellant into trouble. The police investigator has also been considered by Mr. Mbogoro as a material witness but Ms. Tengeneza has played down his importance as what he would testify was covered by witnesses who testified. To begin with, we agree with Ms. Tengeneza that, the parties and, more specifically in our case, the prosecution, are not under any obligation to call the witnesses that are available if their testimony can be adduced by a few, as doing so would scupper the spirit of having time for conducting trials shortened. This spirit rhymes with what section 152 of the Evidence Act provides, to the effect that there is no particular number of witnesses is required in proving a case. Where, however, certain witnesses are

material and are able to testify to certain material facts, and such witnesses are available but not called, the court is entitled to draw an inference adverse to the prosecution — see: Azizi Abdalah v. Republic [1991] T.L.R. 71. We are convinced that, in the circumstances of this case, Neema and Eliza were material witnesses who would have shed some light on whether what said of the appellant really happened and whether they saw and heard the appellant seduce PW3. Eliza, especially, would also testify on whether these were trumped up charges arising out of the allegation that the appellant and the victim's family had an axe to grind. Equally in divergence with Ms. Tengeneza's argument is the contention about the significance of the police investigator. In our considered view, this witness was equally material and his presence was indispensable. He would answer a question or two, especially on the all- important aspect of when exactly did PW3 name the appellant, and whether that was early enough to conclude that reliability was ensured. This would be a witness who would also tell the court if the delayed arraignment had any semblance of justification. We are convinced that absence of these witnesses left some loose ends in the prosecution case, leaving it bruised and bleeding.

There is another emotive aspect of the delay in the arraignment of the appellant and what it portends. The record is quite explicit and both counsel are at one that, the appellant who was arrested on 26th October, 2022, was arraigned in court on 7th November, 2022. This means that 15 days passed before he eventually had his day in court. The contention by the respondent’s counsel is that the delay did not cause any prejudice to the appellant. No injustice was perpetrated. Mr. Mbogoro is not convinced. Arraignment of accused persons is a step that is regulated by law, and the relevant provision here is section 33 (1) of the CPA which requires that a person taken into custody for an offence other than the offence punishable by death be brought before a court as soon as practicable and, in any case, within twenty four hours after he is taken into custody, or release him on a bond until the day he is arraigned in court. In the instant case, the appellant was made to languish in police custody for all that period and no reason has been adduced to justify his prolonged stay in custody without commencement of his trial. This happened while it is clear that, by 26thOctober, 2022, investigation into the alleged wrong doing had been completed as witnesses who eventually testified in court had already done their part in gathering necessary evidence. This is why, when the appellant was brought to court on 7th

November, 2022, the prosecutor informed the court that investigation was complete (page 3 of the record of appeal) and implored the trial court to fix a date for preliminary hearing. It is the settled position of the law that a delay in the arraignment of an accused person is no longer a question of convenience which can be easily wished away for reasons that are implausible. It is a question that touches on the right of an accused person to face his accusers without any undue delay. So critical is the timely arraignment of the accused person that its failure raises doubts on the truthfulness of the case against him — see: Soma Mbeki v. Republic, Criminal Appeal No. 92 of 2020 [2022] TZCA 785; David Zabron @ Lusumo v. Republic, 2020 [TZCA] 241; Ramson Peter Ondile v. Republic, 2021 [TZCA] 84; and Director of Public Prosecutions v. Focus Malindi (supra). In all these decisions, the Court has not hidden its dismay at and intolerance to unexplained delays in arraigning the accused persons. Thus, in David Zabron @ Lusumo (supra), the Court observed as follows: "The unexplainable delay which is featured in the charge sheet has some connection with the appellant’ s defence story.... As alluded to above, the charge sheet shows that the appellant was charged after a lapse o f approximately nine (9) months from the date when the alleged offence was committed. There is no justifiable 17

explanation o f the said delay on record considering the fact that he was arrested on the fateful date . " In yet another effort to lay emphasis on the need to conform to the tenets of the law as enshrined in section 33 (1) of the CPA, the Court remarked in Director of Public Prosecutions v. Focus Malindi (supra), as follows: "The analogy which is derived from the cases which require delay to act to be accounted for, even if it is for a day, can as well be applied here in the sense that, that failure to arraign a suspect under arrest even for a day needs to be accounted for since Section 32 (1) o f the CPA demands there be a prompt arraignment We hold, therefore, that the delayed arraignment o f the respondent was prejudicial to him and since such delay was not cushioned with reasonable explanations, the same, as we shall see shortly, affected the prosecution's case. Ms. Tengeneza has urged us to consider the unexplained delay as having no consequence because, after all, the appellant finally appeared in court, pleaded not guilty to the charge and was afforded an opportunity to defend his innocence. While this may be considered to be less impactful as

far as observance of the accused person’s rights subsequent to arraignment, the usually forgotten impact is the credibility crisis that it creates to the prosecution case. The question that often lingers in people's minds after the delayed arraignment is whether the transgression complained of really occurred. In Ramson Peter Ondile v. Republic, 2021 [TZCA] 84 this Court censured the prosecution's procrastination in arraigning the accused person. It held as follows: "The unexplained delay to arraign the appellant in court creates doubt in the prosecution case as to whether the incident occurred as alleged . " The long and short of what we have endeavoured to state is that, the case for the prosecution was severely undermined because of the unexplained delay, and that, insurmountable doubts exist on whether the rape incident in respect of which the appellant has valiantly and consistently denied his involvement occurred as contended by the prosecution. The totality of the gaps and flaws pointed out, fortify our view and finding that it was unsafe for lower courts to conclude that a case was made out against the appellant. We, therefore, agree with Mr. Mbogoro that the case against the appellant was not proved beyond reasonable doubts.

Consequently, we allow the appeal, quash the conviction and set aside the sentence, and order that the appellant should be immediately released from prison unless held for other lawful cause. DATED at SONGEA this 13th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 15th day of September, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a try^ ^^ ^ ^^ g original. mtnL. A. S. OfJGULU EPUTY REGISTRAR COURT OF APPEAL